1 Big Car Park, 2 landowners, Valid parking ticket but Parking Charge Issued

Thanks for your replies.
Yes I have an MCOL letter from Northampton and have extended my response by doing an "acknowledge of service".

Answers to questions ->
Parking Company = "ES....."
I am going to take a look at signage as in my local town today and check frequency of signage etc...
The other area of the car park is council owned which was the ticket i purchased. At the time both areas were same cost. I have a video which shows one small sign, highup, small lettering, which would have passed on my journey to parking in the second area.

Working on my defence this week, will post it when feel it is in draft state.

Any more suggestions of cases / tips / things to look for will be greatly received.

Note: Thanks for tip for not denying being driver - was just using standard letter. I wish i had sent a better reply to the "Letter before claim" received.

Anyway
Thanks

Thank for so much for your reply and have drafted the following. ES are AOS members and should follow IPC code of practice.
Also I have amended my first post to make it more succinct.


In the County Court
Claim Number:
Between
xxxx (Claimant)
and
xxxx (Defendant)


Defence Statement


Preliminary Matters.

1. The claimant failed to include a copy of their written contract as per Practice Direction
16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the
Claimants contractual authority to operate there as required by the Claimants Trade
Association's Code of Practice B1.1 which says
1.1 If you operate parking management activities on land which is not owned by you, you
must supply us with written authority from the land owner sufficient to establish you
as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where
applicable) and in any event to establish you as a person who is able to recover
parking charges. There is no prescribed form for such agreement and it need not
necessarily be as part of a contract but it must include the express ability for an
operator to recover parking charges on the landowner’s behalf or provide sufficient
right to occupy the land in question so that charges can be recovered by the operator
directly. This applies whether or not you intend to use the keeper liability provisions.

2. The Particulars of Claim do not meet the requirements of Practice Direction 16 7.5 as
there is nothing which specifies how the terms were breached. Indeed the Particulars
of Claim are not clear and concise as is required by CPR 16.4 1(a). The Claimants are
known to be serial issuers of generic claims similar to this one. HM Courts Service
have identified over 1000 similar sparse claims. I believe the term for such behaviour
is roboclaims and as such is against the public interest.

Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point:!
1.4 The following are examples of cases where the court may conclude that particulars of
claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
1. those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’,
2. those which are incoherent and make no sense,
3. those which contain a coherent set of facts but those facts, even if true, do not
disclose any legally recognisable claim against the defendant


On the basis of the above, we request the court strike out the claim for want of a
cause of action.



Statement of Defence

I am XXXXX, defendant in this matter. It is admitted that the Defendant was the
authorised registered keeper of the vehicle in question at the time of the alleged
incident and was the driver of the car that day.
The Defendant denies liability for the entirety of the claim for the following reasons.

1. The claimant has not provided enough details in the Particular of Claim to file a full
defence.
a) The Claimant has stated that a parking charge was incurred.
b) The Claimant has given no indication of the nature of the alleged charge.
c) There is no information regarding why the charge arose, what the original charge
was, what the alleged contract was nor anything which could be considered a fair
exchange of information.
d) On the 20th September 2016 another relevant poorly pleaded private parking
charge claim by Gladstones was struck out by District Judge Cross of St
Albans County Court without a hearing due to their ‘roboclaim’ particulars being
incoherent, failing to comply with CPR. 16.4 and ‘providing no facts that could
give rise to any apparent claim in law.’
e) On the 27th July 2016 DJ Anson sitting at Preston County Court ruled that the very
similar parking charge particulars of claim were eficient and failing to meet CPR 16.4
and PD 16 paragraphs 7.3 – 7.6. He ordered the Claimant in that case to file new
particulars which they failed to do and so the court confirmed that the claim be
struck out.

The Defendant asks that the court orders Further and Better Particulars of Claim and
asks leave to amend the Defence.

2. The Claimant has not complied with the pre-court protocol.
a) No initial information was sent to the Defendant for the following
(i) Full particulars of the parking charges.
(ii) Who the party was that are contracted with ES......
(iii) The full legal identity of the landowner
(iv) A full copy of the contract with the landholder that demonstrated that ES Parking had
their authority.
(v) If the charges were based on damages for breach of contract and if so to provide justification of this sum
(vi) If the charge was based on a contractually agreed sum for the provision of parking
and If so to provide a valid VAT invoice for this 'service'.
(vii) To provide a copy of the signs that ES Parking can evidence were on site and which contended formed a contract with the driver on that occasion, as well as all Photographs taken of the vehicle in question.
b) I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out
that there can be no reasonable excuse for the Claimant's failure to follow the Pre-
action Conduct process, especially bearing in mind that the Claim was issued by their
own Solicitors so they clearly had legal advice before issuing proceedings.


3. I have the reasonable belief that the Claimant does not have the authority to issue charges on this land in
their own name and that they have no rights to bring action regarding this claim.
a) The Claimant is not the landowner and is merely an agent acting on behalf of the
landowner and has failed to demonstrate their legal standing to form a contract.
b) The Claimant is not the landowner and suffers no loss whatsoever as a result of a
vehicle parking at the location in question
c) The Claimant is put to proof that it has sufficient interest in the land or that there are
specific terms in its contract to bring an action on its own behalf. As a third party
agent, the Claimant may not pursue any charge

4. No planning permission for signage
a) The Claimant is not entitled to rely on an illegal or immoral act in order to profit from it, pursuant to the doctrine ex dolo malo non oritur actio. In this matter, the Claimant does not have planning/advertisement consent in relation to its parking signage on the land in question (which are classed as “advertisements” under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (as amended). This is a criminal offence under Regulation 30 of those Regulations. Accordingly, as a matter of public policy the principle ex dolo malo non oritur action should apply – namely, the Claimant should not be allowed to found a cause of action on an immoral or an illegal act (in this case the unlawful signage). The rationale for this is set out in the case of Holman v Johnson (1775) 1 Cowp 341 and was reaffirmed in RTA (Business Consultants) Ltd v Bracewell [2015] EWHC 630 (QB) (12 March 2015). The Defendant also relies on Andre Agassi v S Robinson (HM Inspector of Taxes) [2005] EWCA Civ 1507.
b) In addition to the criminal offence committed by the Claimant, it is in breach of various statutory and regulatory provisions set out in the Consumer Protection from Unfair Trading Regulations 2008 (Regulation 3 – a breach of which is an offence under Regulation 5), the Consumer Rights Act 2015 (Sections 62 and 68 and Schedule 2) and the Consumer Contract (Information, Cancellation and Additional Charges) Regulations 2013 (Regulation 13). Again, the court should not lend its aid to the Claimant in founding a claim based on its unlawful and/or immoral conduct.
c) Furthermore, it must be contrary to public policy for a court to enforce a contract whereby a party will profit from its criminal conduct and the Defendant will rely on ParkingEye v Somerfield Stores [2012] EWCA Civ 1338

5. The signage was inadequate to form a contract with the motorist even if it did have planning permission
a) Signs are too high to be easily seen from a car thus failing IPC CoP guidelines
b) The car park has 2 different landowners; one area owned by the local council; the other privately owned and managed by the Claimant. There is no signage at change of land ownership which goes against AOS CoP guidelines.
c) There is also no fence at land ownership boundary to stop travel between 2 areas. A driver who bought a legitimate ticket for Council area of car park but unknowingly ends up parking in the private area of car park can be penalised without knowing it and vice versa. A form of entrapment which it feels like in this case. IPC CoP Part B 14.1 says "You must not use predatory or misleading tactics to lure drivers into incurring parking charges Such instances will be viewed as a serious instance of non-compliance"

6.
a) The Claimant has sent threatening and misleading demands which stated that
further debt recovery action would be taken to recover what is owed by passing the
debt to a ‘local’ recovery agent (which suggested to the Defendant they would be
calling round like bailiffs) adding further unexplained charges of £25, and later an
extra £35, to the £100 with no evidence of how this extra charge has been calculated.
No figure for additional charges was 'agreed' nor could it have formed part of the
alleged 'contract' because no such indemnity costs were quantified on the signs.
Terms cannot be bolted on later with figures plucked out of thin air, as if they were
incorporated into the small print when they were not.
b) The extra charges appear to be an added cost with apparently no qualification and an
attempt at double recovery, which the POFA Schedule 4 specifically disallows.
c) The Defendant has the reasonable belief that the Claimant has not incurred £60 costs
to pursue an alleged £100 debt.
d) The Protection of Freedom Act Para 4(5) states that the maximum sum that may be
recovered from the keeper is the charge stated on the Notice to Keeper.

Data Protection Act breach
For the reasons set out above, the parking charge which is the subject of these proceedings is invalid. The Claimant therefore had no right to request the keeper’s details from the DVLA and to use them, and has breached the Defendant’s rights under the Data Protection Act by doing both. Vidal-Hall v Google Inc [2014] EWHC 13 (QB) is authority that misuse of personal data is a tort. Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199 is authority that a reasonable sum of compensation would be £750. The Defendant reserves his rights in respect of these matters.

I believe the facts stated in this defence are true.


(Signature) (Date)